Longtime Houston attorney Tom Kirkendall's observations on developments in law, business, medicine, culture, sports, and other matters of general interest to the Houston business, professional, and academic communities.

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The High Price of Asserting Innocence

Last week, former Enron chief accountant Richard Causey pled guilty to a single count of securities fraud and agreed to a seven-year prison term after vigorously defending himself from multiple charges of business crimes for over two years. Had he elected to defend himself at trial against the charges and lost, he would have faced an effective life sentence.

Earlier this year, former Enron Broadband CEO Ken Rice testified falsely in the Enron Broadband trial after cutting a plea bargain with prosecutors in the face of an almost certain conviction on insider-trading charges (Rice had sold Enron stock in August, 2001 immediately after a meeting with Jeff Skilling in which Skilling informed Rice that he was resigning as Enron’s CEO).

The Enron Broadband trial ended in a mess of acquittals and a mistrial, and all five defendants in that case face re-trials later this year. Rice remains free on bond and has not yet been sentenced.

Meanwhile, throughout the over four-year criminal investigation relating to the demise of Enron, the Enron Task Force has engaged in widespread intimidation of potential witnesses in Enron criminal cases by threatening those witnesses with indictment if they provide exculpatory testimony on behalf of any defendant in an Enron-related criminal trial.

Lawrence Ciscon and Beth Stier testified dramatically about those prosecution threats during the Enron Broadband trial, and dozens of key witnesses with exculpatory testimony declined to testify on behalf of four Merrill Lynch executives in the Nigerian Barge trial after the prosecution had fingered the witnesses as unindicted co-conspirators. The Merrill Lynch executives were all convicted in that trial and are now serving jail sentences.

The government previously obtained a gruesome 24 year sentence against Olis for having the temerity of asserting his innocence in regard to the Project Alpha-related charges at trial. The Fifth Circuit later overturned that sentence and Olis is awaiting re-sentencing.

Yale Law Professor John Langbien, who has written extensively on prosecutorial abuse in the American criminal justice system, observes as follows:

Plea bargaining concentrates effective control of criminal procedure in the hands of a single officer. Our formal law of trial envisages a division of responsibility. We expect the prosecutor to make the charging decision, the judge and especially the jury to adjudicate, and the judge to set the sentence. Plea bargaining merges these accusatory, determinative, and sanctional phases of procedure in the hands of the prosecutor.

Students of the history of the law of torture are reminded that the great psychological fallacy of the European inquisitorial procedure of that time was that it concentrated in the investigating magistrate the powers of accusation, investigation, torture and condemnation. The single inquisitor who wielded those powers needed to have what one recent historian has called ‘superhuman capabilities [in order to] . . . keep himself in his decisional function free from the predisposing influences of his own instigating and investigating activity.'”

I cannot emphasize too strongly how dangerous this concentration of prosecutorial power can be. The modern prosecutor commands the vast resources of the state for gathering and generating accusing evidence. We allowed him this power in large part because the criminal trial interpose the safeguard of adjudication against the danger that he might bring those resources to bear against an innocent citizen — whether on account of honest error, arbitrariness, or worse.

So, what really is the bigger problem for American society and the rule of law? Criminal business executives or out-of-control prosecutors who bludgeon defendants into plea bargains and use the threat of indictment to prevent juries from hearing exculpatory testimony about defendants charged with crimes?

The disparity in sentences between Olis, on one hand, and Foster and Sharkey, on the other, is a stark reminder of the high price that a business executive must pay these days for asserting innocence in the American criminal justice system. Similarly, the difference between Causey’s seven year sentence and whatever Rice eventually gets is largely attributable to Causey’s assertion of his innocence until the eve of his trial. Ellen Podgor previously commented on the troubling implications of this trend in connection with the sentences emanating from the WorldCom prosecutions.

In a scene set just after World War II from the movie The Aviator (hat tip to Larry Ribstein), Howard Hughes asks Senator Brewster if he really wants to go to war with him. Brewster responds:

“It’s not me, Howard. It’s the United States government. We just beat Germany and Japan. Who the hell are you?”

What the government is doing in punishing Jamie Olis for asserting his innocence is wrong. Likewise, regardless of what one thinks about the propriety of the government’s Lay-Skilling and Nigerian Barge prosecutions, the government is wrong in preventing the defendants in those cases from presenting to their juries exculpatory testimony from dozens of relevent witnesses.

It’s easy to delude ourselves that the cost of doing nothing in response to such wrongs is “merely” the lives of a few unpopular businessmen. But in reality, erosion of justice and respect for the rule of law is the far higher price that we pay for turning our collective cheeks in the face of such abusive tactics. For, as Sir Thomas More reminds us, if that abusive state power is not controlled and is then turned on us, “do you really think you could stand upright in the winds [of abusive state power] that would blow then?”

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7 thoughts on “The High Price of Asserting Innocence”

Tom:
Great round up of prosecutorial abuses going on right now. I’ve been watching for news on Jamie Olis based on your writing about it alone.
I also want to point out another perplexing case: Brandy Del Briggs. This is the mother accused of killing her infant and plead “guilty” at the suggestion of her attorney (who denied he did). She was sentenced to 17 Years by State District Judge Mary Lou Keel. The Texas Supreme Court dismissed her conviction just before Christmas (which should tell you a LOT since they don’t dismiss ANYTHING). It looks like her child was a victim of malpractice: the doctors inserted a breathing tube into the baby’s stomach instead of his lungs. (see: http://www.chron.com/disp/story.mpl/metropolitan/3569062.html)
If you are going to CRIMINALIZE every singel bad thing that happens to people (including accidents and malpractice), then prosecute the Doctors!
I’m not real happy with the Judge or presecutors in this case and a few other cases. I get the impression they are more concerned with protecting their reputations than pursuing “Justice”…….
Sound familiar?

Tom K. —
Thanks for continuing to write about this — let’s hope that the seriousness of these issues begins to sink in to larger segments of the public over time.
Regarding the price of asserting innocence, at what point does this become a constitutional issue? Basically, prosecutors and the courts have the power (and are exerting the power) to punish defendants for exercising their right to defend themselves. How can this be tolerated?
The financial burden of legal fees in white collar criminal cases is often itself a huge incentive for a defendant to plea bargain. Add to that incentive the knowledge that the state will punish them for defending themselves, and you get huge incentives for innocent people to cut plea deals. Clearly, justice is not being served by this warped process.

Evan, I doubt there is a Constitutional problem because, in the end, Congress passes the laws that provide these absurd sentences and that allow prosecutors to stack indictments with multiple counts for the same alleged crimes. And if there is a Constitutional problem in treating plea bargaining defendants much more leniently than someone who asserts their right to trial, I would be concerned that the government’s response to such an problem would be simply to punish the plea bargainers more harshly, which would not be a good thing, either.
The best solution in the short term is for the legal profession to exercise prosecutorial discretion with regard to questionable prosecutions and to provide guidance to Congress to pass sensible criminal laws. Sadly, the profession is not doing much of either.

Tom argues, “Sadly, the profession is not doing much of either.”
No Tom, thousands of lawyers have been fighting this battle for a long time. The poster children for unfair federal criminal prosecutions are not Lay and Skilling but the thousands of nameless, faceless poor, but especially black or hispanic, people charged with dope crimes.
You are so late to the battle and so self-serving in your pleas for Lay and Skilling that you really don’t help.
Additionally, I can recall when Ken Starr was treating everyone connected with Whitewater in the fashion about which you now complain. Didn’t hear your voice then?

Well, Moe, blogging was not in existence at the time of the Starr investigation. But for what it’s worth, I did not believe at the time that Starr exercised appropriate prosecutorial discretion.
As for your observation about the unfairness of many federal prosecutions of poor people, I agree. However, that does not make unfair prosecutions against wealthy people any less egregious.
Similarly, the efforts of lawyers to defend poor folks unfairly charged with crimes, although salutory, does not have any impact on the failure of prosecutors to exercise discretion or the failure of the legal profession to provide appropriate leadership in Congress on legislation regarding either white collar or drug-related crimes.

Yes there is a high price indeed for asserting innocence:
This is what we are paying and have already paid:
**Due to prostate related health issues and one kidney… accused passed out during trumped up interrogation and no help is received.
**Leaves America for home country to save his health and his life… leaving American wife and disabled wife’s parents behind.
**Accused is estranged from daughters and grandchildren of previous marriage.
**Loss of income and more than $100,000 dollars in debt for wife to deal with.
**The death of wife’s stepfather.
**Wife is isolated with no strongly supportive friends… and no religious support because of “excommunication” from former congregation.
**Suicidal depression of the wife of the accused.
**Mother-in-law unable to find doctor for her severely disabled condition due to brain tumor removed and complicated back surgery.
This is a nightmare… and the only thing I have to hold onto is my faith and my sense of humor…
that humor lead me out of a severe depression… I almost didn’t make it save for three very special people whose names remain anonymous.
Please read my journal. The tale is interwoven with humor and realism…
Kind Regards,
Katie.